Judge refuses to disqualify himself from case

 By CHARLES MOI

A JUDGE has refused to disqualify himself from presiding over the Ok Tedi Mining Ltd court case. 

Justice Derek Hartshorn refused contentions raised by plaintiffs, Pastor Steven Bagari and others. 

The case was adjourned to June 27 for inter-party hearing. 

The plaintiffs’ lawyer, Allen Baniyamai, filed the application to disqualify Justice Hartshorn from presiding over the case on an apprehension of bias.  

Baniyamai submitted that the application was presumed primarily on Hartshorn’s conduct of the proceedings on comments made by another judge that Hartshorn may have a conflict of interest. 

Bagari and others claim substantively, declaratory relief to the effect among others, that certain Community Mine Continuation Agreements are unenforceable, null and void and are of no effect.   

They argued that the continuous dumping of mine waste and tailings into the Ok Tedi and Fly River systems is in breach of the Mining and Environment Act and is unlawful. 

Finance Minister James Marape was in support of the application for disqualification. 

Mining Secretary Schadrach Himata, the second defendant, and the State, third defendant, opposed the application to disqualify Hartshorn. 

They submitted that  the application made by Bagari was made late given that the plaintiffs (Bagari) were invited by the court at an early stage to make any disqualification applications. 

But the plaintiffs did not do so until after the ruling on the stay application.

Hartshorn, in his ruling, stated that the contention by the plaintiffs and Marape to be that of an objective, fair-minded lay observer.

But he rejected this contentious ground by plaintiffs and Marape, saying the enquiry was made by a lawyer during the court vacation. 

“I was one of the vacation judges at that time and was ready to hear the matter,” Hartshorn said. 

“That I heard the enquiry from a lawyer, in the absence of other lawyers, is not an indication that I would have heard the matter ex-parte or that I would be predisposed to find in favour of the second (Himata) and third (State) respondents.”